English law is flexible enough to incorporate a role for sharia as an informal mechanism for dispute resolutionby Thom Dyke / February 29, 2008 / Leave a comment
Following Rowan Williams’s comments on sharia law, Sayeeda Warsi, the Conservatives’s shadow community cohesion minister, said “Williams seems to be suggesting that there should be two systems of law, running alongside each other, almost parallel, and for people to be offered the choice of opting into one or the other… that is unacceptable.”
In fact, Williams suggested nothing of the sort. This was not a call for sharia principles to be “incorporated” into British law by the same formal mechanism that the European convention on human rights became part of domestic law through the Human Rights Act in 1998. Neither was it an argument for the supremacy of sharia law to English law, in the way that the 1972 European Communities Act established the primacy of European legislation.
As the archbishop said, some elements of sharia are fast becoming the default position in Muslim communities throughout the country. While no one knows the exact numbers of sharia courts currently operating, one organisation, the Islamic Sharia Council in Leyton, east London, has dealt with over 7,000 cases since it was founded in 1982. Such bodies are entirely unregulated, and no formal qualifications are required to hand down interpretations of Koranic law.
So there is a need to clarify the role of the state. But the archbishop stopped short of mapping out the intellectual space in which sharia might be accommodated within the framework of English civil law. This raises the question of how large that space should be, and what form it should take.
Such an acceptance of alternative systems of jurisprudence in the English legal system would not be without precedent. Much of the media commentary on Williams’s speech assumed that English law exists in a vacuum, independent of external influence. However, this is a purblind view. As a common law system which has developed organically to take into account jurisprudence from all around the world, in addition to both EU law and international treaty obligations, English law is more than capable of evolving to deal with new social tensions.
Indeed, there is a precedent for recognising the existence of distinct religious jurisprudential space found in the development of canon law, which allows the Church of England suzerainty over church property and discipline of the clergy. Other parts of civil society have been faster to acknowledge the changing face of British society, such as the banking sector, which offers sharia-compliant personal and business bank accounts. A recognition that communities may wish to deal with certain matters according to their religious beliefs does not threaten the edifice of the state. Nor does it necessarily have to envisage the creation of a parallel legal system.
Consider the role which Islamic courts could play in officiating over certain forms of civil disputes, similar to the Jewish rabbinical courts, or beth din. The underlying purpose of sharia courts to date has been to provide a mechanism for an informal dispute resolution process within Muslim communities. Taking dispute resolution as a model for sharia courts provides one possible way of weaving them into the fabric of the legal system. Lord Woolf’s 1996 report “Access to Justice” highlighted the need for parties involved in disputes to see litigation as a last resort. In 1999, his recommendations were enshrined within the Civil Procedure Rules, which formally encourage litigants to use an “alternative dispute resolution” (ADR) procedure before taking legal action.
Sharia court rulings could be put on a similar footing to other types of ADR. Mainstream courts already look favourably upon a willingness to submit to ADR. The next question is whether the decisions made by sharia courts would be binding or not. This distinction is similar to other forms of ADR such as arbitration, which is binding, and mediation, which is not. Beth din rulings are not binding on the parties, and it would seem sensible to envisage a similar “soft incorporation” of sharia courts. This would leave either litigant free to pursue a separate action in the civil courts if they were dissatisfied with the sharia ruling.
What content would be appropriate for the state to recognise sharia courts as covering? Britain’s obligations under the Human Rights Act and various international treaties make it unlikely and possibly unable to recognise a system which reinforced retrograde practices, or left litigants in a position with less substantive rights than they would have under English common law. For example, Islamic law grants a lower value to testimony given by a woman than to a man. On the face of it, such a provision would clearly violate the right to fair trial guaranteed in the European convention. Another example can be found in the provisions for differential treatment between the sexes over matters of inheritance.
One way of resolving these problems would be to reduce the formal competence of sharia courts to exclude laws promoting unequal treatment in areas such as succession and probate law. Much has been made of the potential for sharia law to reduce the protection given under English human rights law. Less has been said about the possibilities for dialogue between the two legal systems to introduce a strand of human rights jurisprudence into the practice of sharia.
The archbishop’s remarks do however raise other concerns. First, he assumes that it would be possible to draw a concrete distinction between religious practices, which would be justiciable, and cultural practices, which would not. Whether a practice is cultural or religious is often a matter of religious interpretation, such as the wearing of the veil for Muslim women. There does not seem to a clear-cut distinction, and the archbishop’s comments gloss over the differences which exist between different Muslim communities and scholars.
The second difficulty with the archbishop’s proposal is that, despite protestations to the contrary, any move to create a space for the development of an Islamic jurisprudence within English law will inevitably lead to a desire for more. This does not mean that such a discourse should not be attempted, but rather that the limits for accommodation should be strictly defined. This raises a further question—how far will providing an official sanction to the role of sharia courts endow the rulings handed down with the authority of state sanction? Given that the majority of sharia cases are brought by women seeking divorce, there is an argument that there will be pressure on such women to use sharia courts against their will. However, this argument misunderstands the reason many women turn to sharia courts, which is to provide a religious sanction to their divorce. Without receiving such sanction, divorced women risk disapproval within the community. Paradoxically, sharia in this sense could lead to real female empowerment.
Finally, the level of cultural dialogue which Williams envisions to enable a system to be truly effective may simply prove impossible to achieve. Any legal system rests on the legitimacy it enjoys in society. Whereas most British Muslims may agree that Islam is based on a personal relationship between the individual and God, there is a vocal section for whom Islam provides for a complete political system. For Britain’s Islamist groups, writers such as Syed Qutb cannot merely be dismissed as “primitivist.” The archbishop’s warning to “make sure we don’t collude with unexamined systems that have repressive effect” may be easier said than done.
Once all the heat and light has diffused, the question that remains is whether granting Islamic law a formal role within English law will lead to greater community cohesion or not. Much of the cohesiveness of British society is derived from the ability of our common law system to develop organically while reconciling competing values. Whether or not this can be achieved through the archbishop’s methodology, there is much to celebrate from the fact that we have a legal system which is mature enough to redefine itself to face the challenges of a changing Britain.